It is quite common for attorneys—and law firms—to use social media in a professional capacity to connect with peers, promote their practices, or stay abreast of cutting-edge legal topics. Most of those attorneys know how important it is to comply with the applicable ethical rules when using social media in connection with their practices. However, attorneys are not always as cautious with their “personal” social media. But recent developments suggest that attorneys may not be able to simply take their attorney hats off and ignore their ethical obligations when using social media.
Indeed, a high-profile ethics opinion issued by the District of Columbia Bar, D.C. Ethics Opinion 370, observed that “social networking sites, and social media in general, make it easier to blur the distinctions between communications that are business and those that are personal.” This is especially true where an attorney intends to use social media for personal purposes but nonetheless identifies the name of her or his law firm (e.g., in a Facebook profile or Twitter biography).
Even where an attorney makes clear that her or his social media account is being used in a personal capacity, any reference to the attorney’s profession or law firm may lead members of the public to associate any posts made with that law firm. Even without such identifying information, it can be easy for members of the public to identify attorneys and their firm affiliation through a simple online search. Because of this, it can be hard for attorneys to disassociate from their profession on social media, even for “personal” accounts.
One issue implicated by the pervasive use of social media is the possibility that the attorney’s social media posts could create a tension with the firm’s clients, such as by creating a “positional” conflict. A positional conflict is one that may exist, for example, if an attorney argues for a certain interpretation of a statute in one lawsuit because it is in the best interests of one client, but then argues for the opposite interpretation of the same statute in another lawsuit on behalf of a different client. Typically, such conflicting representations are not per se inappropriate unless one representation has an adverse impact on the other, but some states suggest that pursuing conflicting issues before appellate courts could be improper.
The comments to Connecticut Rule of Professional Conduct 1.7 provide that “a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients,” but also recognize that a conflict can exist where the attorney is advocating a position on behalf of one client that could create precedent likely to seriously weaken the position taken on behalf of another client. However, the rules do not appear to expressly address the situation where the attorney takes one position on behalf of a client but separately argues or expresses support for an opposing position in a personal capacity, which today most commonly could occur on social media.
Such an event may be informed the comments to Rule 1.7, which state that a lawyer’s “own interests must not be permitted to have an adverse effect on [the] representation of a client.” Interpreting a similar rule, the District of Columbia Bar recently became one of the first bar associations to address the potential conflicts created by the use of social media and suggested that there could be additional risks for social media-savvy attorneys.
In Ethics Opinion 370, the District of Columbia Bar stated that attorneys sharing information on social media sites should exercise caution “when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.” Indeed, the District of Columbia Bar warned that “content of social media posts made by attorneys may contain evidence” of conflicts.
Thus, seemingly innocent social media posts made in a personal capacity may create serious ethical issues for attorneys. Although some commentators have suggested that the D.C. bar’s opinion goes too far to limit attorneys, social media posts can also create sticky client relations issues (even if the posts do not create a traditional conflict of interest). Here are some tips to consider.
Social media, by its nature, does not always lend itself to lengthy, reasoned critiques or comments. In that way, attorneys may have to dilute their thoughts like sound bites, which can create waves. For example, if the U.S. Supreme Court agrees to hear a controversial case, an attorney may be inclined to immediately offer her or his opinion as to the proper result. Even if the attorney’s posting does not create an actual conflict, a client certainly may be less than pleased to see its law firm advocating for a position if that position stands to harm the client’s interests.
While commenting on ongoing cases is inherently risky (and governed by separate rules of ethics), attorneys who feel compelled to do so can limit their risks by avoiding taking a definite stance and instead presenting a balanced analysis. That could help avoid creating any potential positional conflict with the interests of a client of the attorney and her or his law firm.
In practice, attorneys generally communicate through carefully crafted correspondence and briefs that are consistent with the level of decorum expected of attorneys. Social media, on the other hand, has no such decorum. Attorneys nonetheless should not be deluded into believing that social media is a free zone for unprofessional conduct.
As the Committee on Professional Ethics recognized in Informal Opinion 2011-4, if an attorney is ethically prohibited from doing a certain act in real life, the attorney generally cannot do it (or ask others to do it on their behalf) online.
Think Before Posting
The most obvious tip can often be the hardest in practice. Before posting on any substantive issue (e.g., legal or political issues), attorneys can stop and think practically about the post and the possible response from their firms, clients and potential clients. As a precaution, it may be a good idea to first run the posting by a colleague or firm leadership to ensure that it does not create any unintended conflicts or client relations issues. While social media can be a valuable marketing tool, careless attorneys can undermine the benefits of social media in the time it takes to tweet.
Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims, is co-chairwoman of Dentons’ global insurance sector team and is co-author of “California Legal Malpractice Law” (2014).
Alanna G. Clair is a partner at the firm and focuses on professional liability defense. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”